Wells Fargo Bank, NA v. Marcus Dorris

                                                                                          12/28/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              November 14, 2017 Session

              WELLS FARGO BANK, N.A. v. MARCUS DORRIS

                  Appeal from the Circuit Court for Shelby County
                    No. CT-002902-16 Rhynette N. Hurd, Judge
                     ___________________________________

                           No. W2017-00617-COA-R3-CV
                       ___________________________________

This case involves the appeal of an action for possession of property initially filed in
general sessions court. On appeal to the circuit court, the trial court dismissed the
appellant’s counterclaims for failure to state a claim upon which relief could be granted.
The circuit court thereafter determined that the appeal from general sessions court was
not timely. We reverse the circuit court’s dismissal of the general sessions appeal for lack
of subject matter jurisdiction but affirm the dismissal of the appellant’s counterclaims.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
                     Part; Affirmed in Part; and Remanded

J. STEVEN STAFFORD, P. J.,W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J.,M.S., and ARNOLD B. GOLDIN, J., joined.

Drayton D. Berkley, Memphis, Tennessee, for the appellant, Marcus Dorris.

Bradley E. Trammell and Kavita Goswamy Shelat, Memphis, Tennessee, for the
appellee, Wells Fargo Bank, N. A.

                                        OPINION

                                       Background
       This case originated with the filing of a detainer warrant by Plaintiff/Appellee
Wells Fargo Bank, N.A. (“Wells Fargo”) in Shelby County General Sessions Court
(“general sessions court”) against Defendant/Appellant Marcus Dorris (“Appellant”). The
warrant sought only possession of the property. At the scheduled June 20, 2016 hearing,
Appellant did not appear and the general sessions court awarded possession of the
property in question to Wells Fargo. The following day, Appellant filed a motion to set
aside the judgment and attached, as exhibits, motions to transfer to circuit court and to
dismiss, as well as an answer and three counterclaims. In these filings, Appellant sought
to (1) transfer the action to circuit court; (2) dismiss the eviction action; and (3) assert
counterclaims for wrongful foreclosure, violation of the federal Truth in Lending Act,
and fraudulent suppression of the transfer of the note.
       On July 6, 2016, the general sessions court clerk’s office issued a writ of
possession regarding the subject property. On July 8, 2016, while the post-judgment
motion was pending, Appellant filed a notice of appeal to circuit court. On August 9,
2016, the general sessions court entered its order denying the motion to set aside, stating,
in relevant part, that the notice of appeal divested the general sessions court of
jurisdiction and the parties should proceed with the appeal in circuit court.
       The case was transferred to the Shelby County Circuit Court (“trial court”) and on
October 5, 2016, Wells Fargo filed a motion to dismiss Appellant’s counterclaims. The
motion did not address whether Appellant’s counterclaims were timely raised during the
detainer proceeding in general sessions court but instead addressed the substance of
Appellant’s arguments. On December 9, 2016, the trial court granted Wells Fargo’s
motion to dismiss Appellant’s counterclaims.
        The parties then engaged in a period of discovery. On February 13, 2017,
however, Wells Fargo filed a motion to enforce the June 20, 2016 judgment of the
general sessions court, arguing for the first time that Appellant’s appeal was untimely
where no notice of appeal had been filed in the ten days following the August 9, 2016
order denying the motion to set aside.1 On April 7, 2017, the trial court issued an order
enforcing the judgment of the general sessions court. The trial court ruled that Appellant
failed to file a notice of appeal in the ten days following the general sessions court’s
denial of the motion to set aside, as required for the trial court to acquire jurisdiction. By




1
  Wells Fargo also argued that Appellant’s bond filed in connection with his appeal from the general
sessions court was not sufficient to comply with Tennessee Code Annotated section 29-18-130(b)(1). The
trial court did not rely on this argument in later dismissing Appellant’s de novo appeal, and it has not
been raised as an issue in this appeal. We therefore express no opinion as to the necessity or
appropriateness of a possession bond in this case. C.f., Gallatin Hous. Auth. v. Pelt, No. M2015-01694-
COA-R3-CV, 

, at *3 (Tenn. Ct. App. May 16, 2017), perm. app. denied (Tenn. Sept.
21, 2017) (citing 

(b)(1)) (“Once a defendant files a notice of appeal, the
plaintiff cannot execute the writ of possession without first posting a bond for ‘double the value of one (1)
year’s rent of the premises,’ all costs and damages associated with the wrongful enforcement of the writ,
and any judgment rendered on appeal.”); see also Tenn. R. Civ. P. 62.05 (governing bonds in appeals
from judgments ordering possession of real property); see generally Johnson v. Hopkins, 

, 844–47 (Tenn. 2013) (discussing appeal bonds in detainer actions historically). Although this Court
denied Appellant a stay of the trial court’s judgment pending appeal, we note that nothing in the record on
appeal states that Appellant has vacated the property, and Wells Fargo has not raised an argument on
appeal that this case is moot.


                                                     2
this order, all of the claims raised by the parties had been adjudicated and Appellant filed
a timely notice of appeal to this Court.2
                                          Issues Presented
        Appellant raises two issues on appeal, which are taken, and slightly restated, from
his brief:
        1.     Whether the July 8, 2016 notice of appeal transferred subject matter
        jurisdiction to the trial court from the general sessions court.
        2.    Whether the trial court erred in dismissing Appellant’s
        counterclaims against Wells Fargo.
                                   Subject Matter Jurisdiction
                                                    I.
        As an initial matter, we must first determine whether the trial court had subject
matter jurisdiction to consider Appellant’s appeal from the general sessions court. Subject
matter jurisdiction concerns “a court’s lawful authority to adjudicate a controversy
brought before it[,]” is dependent on the nature of the action and the relief sought, and is
determined by reference to the authority granted to the court by the constitution or the
General Assembly. Chapman v. DaVita, Inc., 

 (Tenn. 2012) (citing
Meighan v. U.S. Sprint Commc’ns Co., 

 (Tenn. 1996); Landers v.
Jones, 

 (Tenn. 1994); Kane v. Kane, 

 (Tenn.
1977)). When challenged, the party asserting that the court has subject matter jurisdiction
over the controversy bears the burden of proof. Chapman, 

 (citing
Redwing v. Catholic Bishop for the Diocese of Memphis, 

 (Tenn.
2012)). The “determination of whether subject matter jurisdiction exists is a question of
law, our standard of review is de novo, without a presumption of correctness.” Northland
Ins. Co. v. State, 

 (Tenn. 2000) (citing Nelson v. Wal-Mart Stores,
Inc., 

 (Tenn. 1999)).
       To the extent that this case involves the interpretation of a statute, our review is
also de novo with no presumption of correctness. See Rajvongs v. Wright, 

 (Tenn. 2013). “When the statutory language is clear and unambiguous, we must
apply its plain meaning in its normal and accepted use, without a forced interpretation
that would limit or expand the statute’s application.” Eastman Chem. Co. v. Johnson,

 (Tenn. 2004) (citing Lipscomb v. Doe, 

 (Tenn.
2000)).
                                                   II.

2
 On April 17, 2017, Appellant applied for an emergency stay of the trial court’s judgment in this Court.
Appellant’s request was denied by order of April 21, 2017.
                                                    3
        Appeals from the general sessions court to the circuit court are governed by
statute. See Griffin v. Campbell Clinic, P.A., 

 (Tenn. 2014).
Tennessee Code Annotated section 27-5-108(a) provides: “Any party may appeal from a
decision of the general sessions court to the circuit court of the county within a period of
ten (10) days on complying with this chapter.” See also Tenn. Code Ann. 29-18-128 (“An
appeal will also lie in suits commenced before general sessions judges, under this chapter
[i.e., forcible entry and detainer], within the ten (10) days allowed by § 27-5-108[.]”).
The timely filing of a notice of appeal of the general sessions court’s judgment is
mandatory “and if it is not complied with the [circuit] court has no jurisdiction over the
case.” Love v. Coll. Level Assessment Servs., Inc., 

 (Tenn. 1996)). “If
the appeal is not perfected within the ten-day period, the general sessions court’s
judgment becomes final and execution may issue.” Griffin, 

 (citing

(d)).
       This time period is altered, however, by application of Tennessee Code Annotated
section 16-15-727, which provides:
        (a) Tenn. R. Civ. P. 60.01, regarding clerical mistakes, shall apply to all
        courts of general sessions. The general sessions judge shall have the
        authority under the same circumstances and in the same manner as is
        provided in Tenn. R. Civ. P. 60.01 to correct such mistakes.
        (b) Tenn. R. Civ. P. 60.02, regarding mistakes, inadvertence, excusable
        neglect, fraud and other similar reasons set out in that rule, shall apply to all
        courts of general sessions. A motion under the general sessions court’s
        authority under Tenn. R. Civ. P. 60.02 shall be filed within ten (10) days of
        the date of judgment. Once filed, the motion shall toll the ten-day period for
        seeking de novo review in the circuit court until the determination of the
        motion is concluded. Thereafter, an appeal for de novo review in the circuit
        court shall be filed within ten (10) days of the general sessions court’s
        ruling on the motion to relieve a party or the parties’ legal representative
        from a final judgment, order or proceeding in the same manner as provided
        in Tenn. R. Civ. P. 60.02.3
Thus, a party dissatisfied with the judgment of the general sessions court may seek to set
aside that judgment by the timely filing of a motion under section 16-15-727(b). When
such a motion is timely filed, the time for perfecting a de novo appeal to the circuit court
is tolled until such time as the motion to set aside is adjudicated.


3
 Section 16-15-727 was amended in 2007 to add subsection (b). See 2007 Pub. Acts, c. 443, § 1, eff. June
18, 2007. Prior to this amendment, the law did not provide an avenue to seek correction of a general
sessions court judgment except to correct a clerical mistake. See, e.g., Caldwell v. Wood, No. W2003-
00303-COA-R3-CV, 

, at *3 (Tenn. Ct. App. Feb. 27, 2004) (holding that in the absence
of clear statutory authority, the general sessions court has no authority to set aside its own judgment).
                                                   4
        In this case, the timeline is not in dispute. Here, the general sessions court entered
its judgment for possession on June 20, 2015. The very next day, Appellant filed his
motion to set aside pursuant to section 16-15-727(b). Thus, Appellant’s motion was
timely filed and tolled the time for perfecting a de novo appeal to the circuit court. Had
Appellant waited to file his notice of appeal until the ten days following the general
sessions court’s ruling on his motion to set aside, there would be no question that the
circuit court obtained jurisdiction to consider Appellant’s de novo appeal. Rather than
wait to file his notice of appeal, however, Appellant chose to prematurely file his notice
of appeal on July 8, 2016, prior to the general sessions court’s ruling on the motion to set
aside.4
       Wells Fargo essentially argues that because the general sessions court had not
adjudicated Appellant’s motion to set aside, Appellant’s July 8, 2016 notice of appeal
was of no effect. Under Wells Fargo’s interpretation of section 16-15-727, Appellant was
therefore required to file a second notice of appeal in the ten days following the general
sessions court’s denial of the motion to set aside. In the absence of a notice of appeal
filed within this ten-day window, Wells Fargo asserts that Appellant failed to timely
perfect his appeal.
       In contrast, Appellant argues that the filing of his notice of appeal was timely due
to the tolling provision of section 16-15-727 and that his July 8, 2016 notice of appeal,
while premature, immediately vested the circuit court with jurisdiction to consider his
appeal. Respectfully, we cannot agree. In support for this argument, Appellant cites this
Court’s decision in Born Again Church & Christian Outreach Ministries, Inc. v. Myler
Church Building Systems of the Midsouth, Inc., 

 (Tenn. Ct. App. 2007).
In Born Again Church, the trial court rendered judgment in favor of the plaintiff.
Because of an error, the defendant filed its notice of appeal one day outside the thirty day
time limit for appealing to this Court. 

. On the same day, the defendant also
filed a motion pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure to be
relieved of the judgment. 

 The trial court denied the defendant’s request for relief from
the judgment on the basis that no excusable neglect had been shown. 

. The
defendant thereafter filed a timely notice of appeal from the order denying the Rule 60.02
motion.
       The Court of Appeals raised, sua sponte, the issue of the trial court’s jurisdiction
to adjudicate the defendant’s Rule 60.02 motion. 

 The Court ruled, however, that the
contemporaneous filing of the notice of appeal had the effect of immediately depriving

4
  It appears that Appellant’s decision to file his notice of appeal at this time may have been catalyzed by
the general sessions court’s issuance of a writ of possession on July 6, 2016. See 

-
18-126 (“No execution or writ of possession shall issue against the defendant upon any judgment, under
this chapter, until after the lapse of ten (10) days from the rendition of the judgment.”). At the time the
writ of possession was issued, ten days had elapsed from the entry of the judgment, but the pending
motion to set aside had not been adjudicated. No issue has been raised as to the propriety of this practice
in Appellant’s statement of the issues.
                                                    5
the trial court of jurisdiction to consider the Rule 60.02 motion, which could have had the
effect of relieving the defendant from the final adverse judgment. 

 at 425 (quoting
State v. Snowden, 

, at *2 (Tenn. Crim. App.2006)) (“‘[O]nce the
notice of appeal was filed, the jurisdiction of [the appellate] court attached, and,
correlatively, the trial court lost jurisdiction.”). In other words, “had [the defendant] filed
only the Rule 60.02 motion for relief from the final judgment, without more, the trial
court would have had subject matter jurisdiction to consider the motion.” 

 Thus, we
held that “the trial court ‘has no jurisdiction to consider a [Rule 60] motion after a notice
of appeal has been filed.’” Born Again Church, 

 (quoting Spence v.
Allstate Ins. Co., 

 (Tenn. 1994)).
        We cannot conclude that the same is true in this case. As an initial matter, a
motion pursuant to section 16-15-727(b) is not a Rule 60.02 motion, but rather a separate
motion applicable only in general sessions courts. See generally Tenn. R. Civ. P. 1
(stating that the rules of civil procedure generally do not apply in general sessions courts
except in limited circumstances). As such, Rule 60.02’s reasonable time limits have been
found inapplicable to section 16-15-727 motions. First Cmty. Fin. Servs. v. Simmons,
No. M2010-01597-COA-R3-CV, 

, at *2 (Tenn. Ct. App. June 10,
2011) (holding that the movant cannot rely on the “reasonable time” standard applicable
to true Rule 60.02 motions in filing their section 16-15-727 motion). Instead, section 16-
15-727 provides that a motion to set aside in the general sessions court must be filed in
the ten days following the judgment before the judgment becomes final. See R & F
Enterprises, Inc. v. Penny, No. E2009-00007-COA-R3-CV, 

, at *2
(Tenn. Ct. App. Feb. 22, 2010) (holding that the general sessions court was without
authority to set aside its judgment under Rule 60.02 because the motion was filed more
than ten days after the date of that judgment); see also Griffin, 

 (noting
that a general sessions court judgment becomes final when no appeal is perfected). Also
unlike Rule 60.02, section 16-15-727 expressly provides that the time for filing a notice
of appeal is tolled where such a motion is timely filed. In contrast, the Tennessee Rules of
Civil Procedure provide that a Rule 60.02 motion does not toll the time for taking an
appeal. See Tenn. R. Civ. P. 59.01 (stating that motions under Rules 50.02, 52.02, 59.07,
and 59.04 “are the only motions contemplated in these rules for extending the time for
taking steps in the regular appellate process”); see also Tenn. R. App. P. 4(b) (noting that
where one of the above motions is filed, “the time for appeal for all parties shall run from
the entry of the order denying a new trial or granting or denying any other such motion”).
As such, while a motion under section 16-15-727(b) may only succeed when a movant
can show grounds under Rule 60.02, the procedure of a section 16-15-727(b) motion is
not identical to a Rule 60.02 motion. Procedural rules that are applicable to a Rule 60.02
motion are therefore not necessarily applicable to motions filed pursuant to section 16-
15-727(b).
       Because a motion under section 16-15-727 is filed prior to the general sessions
court’s judgment becoming final, we find caselaw interpreting Rule 59.04 of the
Tennessee Rules of Civil Procedure instructive. Like section 16-15-727 motions, Rule
                                              6
59.04 motions are filed prior to the date a judgment becomes final and have the effect of
tolling the time period for filing an appeal. See Tenn. R. Civ. P. 59.04 (“A motion to alter
or amend a judgment shall be filed and served within thirty (30) days after the entry of
the judgment.”); see also Tenn. R. Civ. P. 59.01 (stating that Rule 59.04 motions are
among the motions that toll the time for taking an appeal); Tenn. R. Civ. P. 62.01
(“Except as otherwise provided in this Rule, no execution shall issue upon a judgment,
nor shall proceedings be taken for its enforcement until the expiration of 30 days after its
entry.”). Thus, while a section 16-15-727(b) motion may be granted only on grounds as
specified in Rule 60.02, the procedure is more akin to that under Rule 59.04.
        Consequently, while Born Again Church and other caselaw surrounding Rule
60.02 indicate the result had this case actually involved a Rule 60.02 motion, caselaw is
equally clear as to the proper result had this case actually involved a Rule 59.04 motion
filed in circuit or chancery court. Under that circumstance, the premature filing of a
notice of appeal prior to the adjudication of a timely filed Rule 59.04 does not
immediately divest the trial court of jurisdiction to adjudicate the pending motion. See
Waters v. Ray, No. M2006-01453-COA-R3-CV, 

, at *4 (Tenn. Ct.
App. June 25, 2008) (holding that where a litigant files a notice of appeal prior to the
adjudication of a pending Rule 59.04 motion, “the trial court retain[s] jurisdiction over
[the] timely-filed Rule 59 motion[.]”). This holding is required by the plain language of
the Tennessee Rules of Appellate Procedure, which state:
        The trial court retains jurisdiction over the case pending the court’s ruling
        on any timely filed motion specified in subdivision (b) or (c) of this rule
        [i.e., A Rule 59.04 motion]. If a motion specified in either subdivision (b)
        or (c) is filed within the time permitted by the applicable rule referred to in
        that subdivision, the filing of a notice of appeal prior to the filing of the
        motion, or the filing of a notice of appeal prior to the trial court’s ruling on
        an earlier filed motion, does not deprive the trial court of jurisdiction to rule
        upon the motion.
Tenn. R. App. P. 4(e). Rule 4 likewise would determine the issue of whether a notice of
appeal was valid even where it was filed prior to the adjudication of the pending motion.
Thus, “[a] notice of appeal filed prior to the trial court’s ruling on a timely specified
motion shall be deemed to be premature and shall be treated as filed after the entry of the
order disposing of the motion and on the day thereof.” Id.; see also Netters v. Tennessee
Bd. of Prob. & Parole, No. M2012-01591-COA-R3-CV, 

, at *2
(Tenn. Ct. App. Nov. 7, 2012); c.f. Glover v. Glover, No. E2002-01690-COA-R3-CV,

, at *2 (Tenn. Ct. App. Feb. 25, 2003) (holding that a trial court had
jurisdiction to consider a Rule 59.04 motion notwithstanding that the motion was filed the
same day as a notice of appeal).5 Accordingly, had this case involved an actual Rule

5
 Glover was decided prior to the adoption of Rule 4(e), which specifically provides that the trial court is
not deprived of jurisdiction to adjudicate a specified post-trial motion where a litigant files a premature
                                                    7
59.04 motion, Appellant’s filing of the notice of appeal prior to the adjudication of the
pending motion would not deprive the general sessions court of jurisdiction to adjudicate
the pending motion but would serve to perfect Appellant’s appeal of the judgment
following the adjudication of the pending motion.
        Unfortunately, Rule 4 of the Tennessee Rules of Appellate Procedure is not
applicable in appeals from the general sessions court to the circuit court. See Tenn. R.
App. P. 1 (“These rules shall govern procedure in proceedings before the Supreme Court,
Court of Appeals, and Court of Criminal Appeals.”); State v. Osborne, 

 (Tenn. Crim. App. 1986) (“[P]roceedings of general sessions courts are not governed
by the Rules of Appellate Procedure.”). But see Baxley v. Baxley, No. E2015-00243-
COA-R3-CV, 

, at *3 (Tenn. Ct. App. Dec. 9, 2015) (citing Rule 4 in
the context of an appeal from the general sessions court to the circuit court) (discussed in
detail, infra). From our research, Tennessee statutes do not contain any similar rules
applicable in general sessions court. As such, we must determine whether a similar rule
should apply given the plain language of the statutes applicable to appeals from general
sessions courts. See Caldwell v. Wood, No. W2003-00303-COA-R3-CV, 

, at *2 (Tenn. Ct. App. Feb. 27, 2004) (“The jurisdiction of General Sessions
Courts is limited to that set out by statute.”).
        From our review, the rationale for Rule 4(e) appears to stem from the fact that the
Rule 59.04 motion was filed prior to the judgment becoming final and results in the
finality of the judgment being deferred pending resolution of the motion. See Glover,

, at *2–3 (allowing the trial court to consider a timely post-trial motion
even filed contemporaneously with a notice of appeal because the post-trial motion
renders the judgment non-final, even in the absence of an express rule requiring such a
result). As such, the case is not final but merely interlocutory pending resolution of all
outstanding issues. See Richardson v. Tennessee Bd. of Dentistry, 

(Tenn. 1995) (citing Saunders v. Metropolitan Gov’t of Nashville & Davidson County,

notice of appeal. See Holladay v. Speed, 

, 414 n.3 (Tenn. Ct. App. 2005) (recognizing the
amendment that went into effect on July 1, 2005). In another case decided prior to the 2005 amendment,
however, this Court held that the trial court was divested of jurisdiction where the notice of appeal was
filed before the filing of the Rule 59.04 motion. See Spann v. Abraham, 

 (Tenn. Ct.
App. 1999) (no perm. app. filed); see also Holladay, 

 (noting that a party seeking relief
from a judgment pursuant to Rule 59 “arguably was required to seek an order of remand from the
appellate court” if the post-trial motion was filed after the filing of a notice of appeal) (emphasis added).
In Glover, we made clear that the basis of our ruling was that no final judgment was entered at the time of
the filing of the notice of appeal because the post-trial motion was pending. Glover, 

, at
*3 (holding that an appeal as of right could not be had “[i]f there are matters pending before the trial
court[.]”). Thus, the rule in Glover appeared to apply where a notice of appeal is filed contemporaneously
or after the filing of a post-trial motion but before adjudication of the motion. See 

 In contrast, the rule
in Spann appeared to apply when the notice of appeal was filed prior to the filing of a post-trial motion.
Spann, 

. Appellant’s notice of appeal was filed after the filing of his motion to set aside
pursuant to section 16-15-727(b). As such, the situation in Glover is more analogous to the facts of this
case.
                                                      8


, 

 (Tenn. 1964)) (“[A] judgment is final . . . when it
decides and disposes of the whole merits of the case leaving nothing for the further
judgment of the court.”). The same principle applies with regard to appeals in general
sessions courts. For example, in Graham v. Walldorf Prop. Mgmt., No. E2008-00837-
COA-R3-CV, 

 (Tenn. Ct. App. Mar. 19, 2009), this Court held that
under Tennessee Code Annotated section 27-5-108, “‘before such an appeal can be taken,
there must have been a final judgment entered in the general sessions court, and an appeal
under this statute cannot be had for the review of interlocutory orders[.]’” 

 at *5
(quoting State v. Osborne, 

 (Tenn. Crim. App. 1986)). Later, we
confirmed this rule despite an amendment to section 27-5-108 to place it in its current
form. See U.S. Bank Nat. Ass’n v. Rzezutko, No. E2011-00058-COA-R3-CV, 

, at *4 (Tenn. Ct. App. Oct. 25, 2011) (“The removal of the word ‘adverse’ from
[section] 27-5-108 did not eliminate the need for a final judgment from the general
sessions court in order to file an appeal pursuant to [section] 27-5-108.”).
        This Court considered a similar issue prior to the adoption of the Tennessee Rules
of Appellate Procedure and came to a similar result. See Johnson v. Johnson, 

, 

 (Tenn. Ct. App. 1956). In Johnson, the plaintiff took an
appeal of the trial court’s judgment within thirty days as required by statute. Id. at 473.
Before thirty days had elapsed from the judgment, however, the plaintiffs also filed a
petition to rehear. Id. The defendants argued on appeal that the initial appeal deprived the
trial court of the jurisdiction to consider the petition to rehear. Id. The Court of Appeals
disagreed, holding that the judgment remained within the trial court’s jurisdiction for the
entire thirty day period following the judgment in which time the parties were permitted
to appeal or file petitions to rehear. Id. at 474–76. As we explained:
       [T]he Chancery Court does not lose jurisdiction of the cause, and the
       jurisdiction of the Court of Appeals does not attach until thirty days have
       expired from the entry of the decree in which an appeal was prayed and
       granted. During that time the Chancellor may vacate or modify his former
       decree upon his own motion or upon the motion of either party litigant.
       Neither of the parties can deprive the Chancellor of his jurisdiction of the
       cause during such thirty days by filing an appeal bond.
Id. at 476. In reaching this decision, the court looked to various statutes governing the
time to appeal the decision and the time to file a petition to rehear, rather than an express
rule requiring this result.

       The statutory language governing appeals from the general sessions court to the
circuit court compels us to reach the same result. As noted above, appeals from the
general sessions courts must be filed within ten days from the date of the final judgment.
See 

(a). In addition, a motion under section 16-15-727(b)
must be filed in the same ten day period and serves to toll the time for filing an appeal.
See 

(b). Like the court in Johnson, we must conclude that
                                             9
a party cannot deprive the general sessions court of its statutory authority to adjudicate a
timely filed section 16-15-727(b) motion by filing an intervening notice of appeal. To so
hold would be to improperly limit the general sessions court’s authority, which has been
conferred by the Tennessee General Assembly. As such, we conclude that the filing of
the July 8, 2016 notice of appeal did not immediately divest the general sessions court of
jurisdiction to consider the pending section 16-15-727(b) motion.

       Our determination that the general sessions court had jurisdiction to adjudicate the
pending section 16-15-727(b) motion, however, does not end the inquiry because we
must next determine whether the filing of the notice of appeal prior to the adjudication of
this motion was fatal to Appellant’s appeal. Again, it is well-settled that premature
notices of appeal to this Court are valid and timely. See Tenn. R. App. P. 4(d) (“A
prematurely filed notice of appeal shall be treated as filed after the entry of the judgment
from which the appeal is taken and on the day thereof.”). In at least one case, this Court
has applied a similar rule in the context of appeals to the circuit court from general
sessions court. See Baxley v. Baxley, No. E2015-00243-COA-R3-CV, 

(Tenn. Ct. App. Dec. 9, 2015). In Baxley, the general sessions court granted the petitioner
a one-year extension on an order of protection. More than ten days following the
purported judgment, the respondent filed a notice of appeal. Id. at *1. The circuit court
transferred the appeal to this Court, ruling that an appeal from an order granting an order
of protection should be to the Court of Appeals. Id. at *2. The Court of Appeals
disagreed, holding that Tennessee Code Annotated section 36-6-601 clearly provides that
an appeal from a final ruling on an order of protection entered in the general sessions
court “shall be to the circuit or chancery court of the county.” Id. (citing 

(3)(F)).

        On appeal, however, the petitioner argued that the circuit court lacked jurisdiction
because the respondent’s notice of appeal was filed more than ten days following the
judgment. Baxley, 

, at *2 (citing 

(3)(F)
(stating that an appeal from a final order of protection must be filed within ten days)).
The Court of Appeals again disagreed, holding that the order at issue was not final
because no certificate of service was included in the order, as required by Tennessee
Code Annotated section 36-3-609. Baxley, 

, at *2 (citing 

(a) (stating that an order “shall be considered entered” when the order is
signed by the judge and all the parties, or signed by the judge and contains a certificate of
service that the order had been served on all non-signing parties)). Because no final order
had been entered, the time for filing an appeal had not expired. Baxley, 

, at *3. Relevant to this appeal, we indicated that once a final order was entered,
respondent could proceed with his appeal to the circuit court notwithstanding that his
notice of appeal was prematurely filed. 

 (citing Tenn. R. App. P. 4(d)) (“We remand
this case to the sessions court for entry of a final order. Once entered, [respondent] may
pursue his de novo appeal with the circuit court.”).


                                             10
        Based upon the persuasive authority of Baxley, we conclude that the same should
be true in this case. Importantly, Wells Fargo cites no caselaw, nor has our research
revealed any, that holds that a notice of appeal filed in general sessions court is of no
effect when its it filed prior to the conclusion of the action, either by final order or
through the adjudication of a pending section 16-15-727(b) motion. Indeed, from our
review, cases decided prior to the current version of our Rules of Appellate Procedure
that held that a premature notice of appeal to this Court was a nullity did so based upon
the express language of the rules applicable at that time, rather than on common law
principles. See Steele v. Wolfe Sales Co., 

 (Tenn. Ct. App. 1983)
(quoting Tenn. R. App. P. 4(b) (1982) (“A notice of appeal filed before the filing or
disposition of any of the above motions [under Rules 50.02, 52.02, or 59.03] shall have
no effect. . . . A new notice of appeal must be filed within the prescribed time measured
from the entry of the order disposing of the motion as provided above.”)); c.f. Griggs v.
Provident Consumer Disc. Co., 

, 

, 

(1982) (holding that a premature notice of appeal was a nullity based upon a 1979
amendment to the Federal Rules of Appellate Procedure that expressly stated that a notice
of appeal filed prior to the disposition of a timely post-trial motion “shall have no
effect”). But see United States v. Cortes, 

 (9th Cir. 1990) (holding
that, in the absence of an express rule applicable in criminal cases stating that a premature
notice of appeal is a nullity, the premature filing of a notice of appeal was valid because
to hold otherwise would be to create a trap for “unwary” appellants).6 In contrast, nothing
in Tennessee statutory law expressly states that a premature notice of appeal filed in
general sessions court “shall have no effect.”

       From our review of the record, we conclude that to impose a rule disallowing
premature notices of appeal in general sessions courts would likewise be a trap for
unwary litigants. Importantly, the rule allowing premature notices of appeal to this Court
is well-settled. Given that no statute expressly disallows this practice, we see no benefit
in treating cases differently in general sessions courts where the result would be to
dismiss otherwise appropriately perfected appeals. In the totality of the circumstances,
including the absence of an express rule disallowing the premature filing of a notice of
appeal in general sessions court and the persuasive authority in Baxley, we conclude that
a notice of appeal filed while a timely section 16-15-727(b) is pending will be treated as a
prematurely filed notice of appeal and will be sufficient to perfect the appellant’s appeal

6
 Rule 4 of the Federal Rules of Appellate Procedure was later amended to expressly provide in civil cases
as follows:

         If a party files a notice of appeal after the court announces or enters a judgment--but
         before it disposes of any motion listed in Rule 4(a)(4)(A)--the notice becomes effective
         to appeal a judgment or order, in whole or in part, when the order disposing of the last
         such remaining motion is entered.

Fed. R. App. P. 4(B)(i).
                                                   11
once the general sessions court disposes of the section 16-15-727 motion. Because
Appellant’s motion to set aside was timely, his premature notice of appeal was sufficient
to perfect his appeal to the circuit court. The trial court therefore erred in ruling that it
lacked jurisdiction to adjudicate Appellant’s de novo appeal.

                                Appellant’s Counterclaims

                                               I.

       Although the trial court dismissed Appellant’s appeal for lack of subject matter
jurisdiction, the trial court had previously ruled that Appellant’s counterclaims should be
dismissed for failure to state a claim upon which relief can be granted pursuant to Rule
12.02(6) of the Tennessee Rules of Civil Procedure. Having determined that the trial
court had subject matter jurisdiction to consider Appellant’s appeal, we will proceed to
consider whether the trial court correctly dismissed these claims on non-jurisdictional
grounds.

        A Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss a complaint for
failure to state a claim upon which relief can be granted tests the legal sufficiency of the
complaint. Lanier v. Rains, 

 (Tenn. 2007). It admits the truth of all
relevant and material allegations, but asserts that such allegations do not constitute a
cause of action as a matter of law. See Riggs v. Burson, 

 (Tenn. 1997).
When considering a motion to dismiss for failure to state a claim upon which relief can
be granted, we are limited to an examination of the complaint alone. See Wolcotts Fin.
Serv., Inc. v. McReynolds, 

 (Tenn. Ct. App. 1990). The basis for the
motion is that the allegations in the complaint, when considered alone and taken as true,
are insufficient to state a claim as a matter of law. See Cornpropst v. Sloan, 

 (Tenn. 1975). Although allegations of pure legal conclusion will not sustain a
complaint, see Ruth v. Ruth, 

, 

 (Tenn. 1963), a
complaint “need not contain in minute detail the facts that give rise to the claim,” so long
as the complaint does “contain allegations from which an inference may fairly be drawn
that evidence on these material points will be introduced at trial.” Donaldson v.
Donaldson, 

 (Tenn. 1977); White v. Revco Discount Drug Centers, 

 (Tenn. 2000). In short, a Tennessee Rule of Civil Procedure
12.02(6) motion to dismiss seeks only to determine whether the pleadings state a claim
upon which relief can be granted, and such a motion challenges the legal sufficiency of
the complaint, not the strength of the plaintiff’s proof. Bell ex rel. Snyder v. Icard, 

, 554 (Tenn. 1999). In considering such a motion, the court should construe
the complaint liberally in favor of the plaintiff, taking all the allegations of fact therein as
true. See Cook ex. rel. Uithoven v. Spinnaker’s of Rivergate, Inc., 

(Tenn.1994). However, we are not required to accept as true factual inferences or
conclusions of law. Riggs, 941 S.W.2d at 47–48. An appellate court should uphold the
grant of a motion to dismiss only when it appears that the plaintiff can prove no set of

                                              12
facts in support of a claim that will entitle him or her to relief. Young v. Barrow, 

 (Tenn. Ct. App. 2003).

       We further note that Tennessee Rule of Civil Procedure 12.02(6) motions are not
designed to correct inartfully drafted pleadings. Dobbs v. Guenther, 

(Tenn. Ct. App. 1992). However, a complaint should not be dismissed, no matter how
inartfully drafted, if it states a cause of action. 

 (citing Paschall’s, Inc. v. Dozier, 

, 

 (Tenn. 1966); Collier v. Slayden Bros. Ltd. Partnership,

 (Tenn.Ct.App.1985)). Nonetheless, there is no duty on the part of
the court to create a claim that the pleader does not spell out in his complaint. Utter v.
Sherrod, 

 (Tenn. Ct. App. 2003). But while we should not endeavor to
create claims where none exist, we must always look to the substance of the pleading
rather than to its form. Dobbs, 

 (citing Donaldson v. Donaldson, 

 (Tenn. 1977)).

                                                          II.

        In the counterclaims attached to his motion to set aside,7 Appellant asserted three
counterclaims, all of which were dismissed by the trial court. On appeal, Appellant
asserts that the dismissal of only a single claim was in error: wrongful foreclosure due to
failure to transmit a valid acceleration letter. Accordingly, we will consider only whether
the trial court erred in dismissing this claim.

       In his counterclaim, Appellant made the following allegation: “[Wells Fargo]
never transmitted an acceleration letter that was compliant with the Deed of Trust.” In
making this assertion, Appellant contended that federal law required an acceleration letter
be sent to Appellant after he was four months behind on his mortgage and that the letter
meet certain regulatory requirements, such as stating the entire amount delinquent and a
statement of the all the costs required to be paid for the mortgage to be reinstated.
Appellant alleged, however, that “[n]o such letter was transmitted prior to Wells Fargo
accelerating the debt, declaring [Appellant] in default or the initiating of foreclosure
proceedings.” The trial court dismissed this claim on two bases: (1) that Wells Fargo had
no responsibility to send an acceleration letter; and (2) that Appellant failed to plead any
damages related to the failure to send a valid acceleration letter. On appeal, Appellant’s
argument has changed somewhat. Rather than asserting that “no . . . letter” was sent by
Wells Fargo, Appellant now asserts that the letter sent by Wells Fargo was not timely.
Indeed, in his brief, Appellant indicates that a letter was sent by Wells Fargo on June 16,
2014, which timing did not comply with federal law because Appellant was not yet one-
hundred days delinquent on his debt. See 

(f)(1) (“A servicer shall not
make the first notice or filing required by applicable law for any judicial or non-judicial
7
 Wells Fargo did not argue in the trial court or on appeal that the attachment of Appellant’s counterclaims to his
motion to set aside was insufficient to place this claim before the trial court. As such, we assume for purposes of
appeal that Appellant’s counterclaims were properly filed.

                                                          13
foreclosure process unless: . . . (i) A borrower’s mortgage loan obligation is more than
120 days delinquent; (ii) The foreclosure is based on a borrower’s violation of a due-on-
sale clause; or (iii) The servicer is joining the foreclosure action of a superior or
subordinate lienholder.”). Appellant asserts that the failure to comply with this federal
law makes Wells Fargo liable for “actual damages to the borrower as the result of the
failure” under the Real Estate Settlement Procedures Act (“RESPA”). 

(f) (applicable where a mortgage servicer fails to comply with certain notice
requirements).

       Wells Fargo does not dispute that federal law is applicable to Appellant’s
mortgage but asserts that even if Wells Fargo violated 

(f)(1) and
RESPA,8 Appellant has failed to show any actual damages as a result, as required by
section 2605(f). We agree.

        Recently, the United States Court of Appeals for the Seventh Circuit held that
even where a mortgage servicer’s action “fell slightly short of full compliance as a
technical matter, a RESPA claim must fail where the borrower could not show actual
damages ‘as a result’ of any failure to comply with RESPA response duties.” Perron on
behalf of Jackson v. J.P. Morgan Chase Bank, N.A., 

 (7th Cir. 2017)
(citing 

(f)). Where a plaintiff has specifically pleaded damages that
result from the violation of RESPA, however, federal courts have held that dismissal was
improper. See Marais v. Chase Home Fin. LLC, 

 (6th Cir. 2013)
(reversing dismissal of the plaintiff’s RESPA action where the plaintiff pleaded that she
suffered interest damages and damages related to preparing documents that “flow[ed]”
from the servicer’s failure to comply with RESPA). Likewise in Tennessee, a plaintiff
alleging a tort action must “aver[] facts sufficient to show the existence of a duty owed by
a defendant, a breach of the duty, and damages resulting therefrom.” McCloud v.
Bradley, 

 (Tenn. Ct. App. 1986); see also Miltier v. Bank of Am.,
N.A., No. E2010-00537-COA-R3-CV, 

, at *1 (Tenn. Ct. App. Mar. 30,
2011) (describing a claim for wrongful foreclosure as a tort action). Actual damages
consist of “[a]n amount awarded to . . . compensate for a proven injury or loss; damages
that repay actual losses.” Black’s Law Dictionary 445 (9th ed. 2009). But see F.A.A. v.
Cooper, 

, 

, 

 (2012) (“Because
the term ‘actual damages’ has this chameleon-like quality, we cannot rely on any all-
purpose definition but must consider the particular context in which the term appears.”).
As pointed out by Appellant in his brief, in the context of damages pursuant to section
2605(f), federal courts have held that emotional damages may be included in the types of
actual damages recoverable. See Perron, 

 (citing Catalan v. GMAC Mort.
Corp., 

 (7th Cir. 2011)); Wienert v. GMAC Mortg. Corp., No. 08-CV-
14482, 

, at *11 (E.D. Mich. Sept. 29, 2009).

8
  Wells Fargo does not admit that 

(f)(1) was violated in this case. We need not decide
this issue.
                                                   14
       After a thorough review of Appellant’s pleadings, however, we find no specific
allegations related to the issue of damages resulting from the alleged RESPA violation.
Appellant does assert that he was damaged both “financially and emotionally” by the
alleged wrongful foreclosure, but provides no allegations that Appellant was damaged
specifically “as a result of” Wells Fargo’s failure to send the acceleration letter in a
timely manner. See Perron, 

; see also Marais, 

. Indeed, as
previously discussed, Appellant now relies on an allegation regarding the timeliness of
the acceleration letter that was not even mentioned in Appellant’s counterclaims.9 “It is
well-settled that an appellant is bound by the evidentiary theory set forth [in the trial
court], and may not change theories on appeal.” State v. Alder, 

(Tenn. Crim. App. 2001); see also Bledsoe v. Buttry, No. E2003-01576-COA-R3-CV,

, at *8 (Tenn. Ct. App. Oct. 25, 2004) (applying this rule in civil
court). Here, Appellant cannot prevail in overturning the dismissal of his counterclaim on
the basis of previously unpleaded theories. Rather, because Appellant’s counterclaim
contains no factual allegations that Appellant suffered actual damages as a result of the
RESPA violation now alleged, the trial court did not err in dismissing this claim.

                                            Conclusion

       The judgment of the Shelby County Circuit Court is reversed in part and affirmed
in part. This cause is remanded to the trial court for further proceedings. Costs of this
appeal are taxed one-half to Appellant Marcus Dorris, and his surety, and one-half to
Appellee Wells Fargo Bank, N.A., for all of which execution may issue if necessary.



                                                       _________________________________
                                                       J. STEVEN STAFFORD, JUDGE




9
  For example, Appellant’s counterclaim does not include an allegation that had the acceleration letter
been sent in accordance with federal law, he would have been able to cure his default and prevent the
foreclosure.
                                                  15